PEOPLE OF MI V CRYSTAL TAMARA CONKLIN
Annotate this Case
Download PDF
STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
June 15, 2010
Plaintiff-Appellee,
v
No. 286270
Macomb Circuit Court
LC No. 2007-004032-FC
CRYSTAL TAMARA CONKLIN,
Defendant-Appellant.
Before: HOEKSTRA, P.J., and MARKEY and DAVIS, JJ.
PER CURIAM.
Defendant was convicted by a jury of first-degree felony murder, MCL 750.316(1)(b),
and first-degree child abuse, MCL 750.136b(2), arising from the death of her 32-month-old son,
who died of blunt head injuries. She was sentenced to life imprisonment for the murder
conviction and 9 to 15 years’ imprisonment for the child abuse conviction. She appeals as of
right. We affirm.
I. TRIAL COURT’S EX PARTE COMMUNICATION WITH JUROR
Defendant first argues that she was denied a fair trial when the trial court engaged in ex
parte communications with a juror. Because defendant did not preserve this issue by raising it
below, our review is limited to plain error affecting defendant’s substantial rights. People v
Carines, 460 Mich 750, 763, 774; 597 NW2d 130 (1999); People v Knapp, 244 Mich App 361,
375; 624 NW2d 227 (2001). Reversal is warranted only if the error resulted in conviction
despite defendant’s actual innocence or if it seriously affected the fairness, integrity, or public
reputation of judicial proceedings, independent of defendant’s innocence. People v Knox, 469
Mich 502, 508; 674 NW2d 366 (2004).
“[T]he right to personal presence at all critical stages of the trial and the right to counsel
are fundamental rights of each criminal defendant.” Rushen v Spain, 464 US 114, 117; 104 S Ct
453; 78 L Ed 2d 267 (1983). In People v Mallory, 421 Mich 229, 247; 365 NW2d 673 (1984),
our Supreme Court acknowledged that “[a] defendant has a right to be present during the voir
dire, selection of and subsequent challenges to the jury, presentation of evidence, summation of
counsel, instructions to the jury, rendition of the verdict, imposition of sentence, and any other
stage of trial where the defendant’s substantial rights might be adversely affected.” Further, the
United States Supreme Court has held that “the complete denial of counsel during a critical stage
of a judicial proceeding mandates a presumption of prejudice[.]” Roe v Flores-Ortega, 528 US
-1-
470, 483; 120 S Ct 1029; 145 L Ed 2d 985 (2000). A “critical stage” of a proceeding is any
stage in which counsel’s absence may harm a defendant’s right to a fair trial. People v Green,
260 Mich App 392, 399; 677 NW2d 363 (2004), overruled on other grounds People v Anstey,
476 Mich 436; 719 NW2d 579 (2006).
MCR 6.414(B) provides, in pertinent part:
The court may not communicate with the jury or any juror pertaining to the case
without notifying the parties and permitting them to be present. The court must
ensure that all communications pertaining to the case between the court and the
jury or any juror are made a part of the record.
In People v France, 436 Mich 138, 142, 161; 461 NW2d 621 (1990), our Supreme Court
examined MCR 6.414(A), the predecessor to MCR 6.414(B), in the context of a court’s
communications with a deliberating jury. The Court held that reversal in such circumstances is
not automatically required and depends on the prejudicial effect of the ex parte communication.
Id. at 142, 163. Although France involved deliberating juries, the language of MCR 6.414(B),
which is identical to former MCR 6.414(A), is not limited to deliberating juries. Thus, the
rationale of France equally applies to a trial court’s communications with jurors who have not
yet begun their deliberations.
In France, the Supreme Court held that a defendant is entitled to reversal of a conviction
if a reviewing court determines that the defendant was prejudiced by a trial court’s ex parte
communication with the jury. France, 436 Mich at 163. The Court explained that “before a
reviewing court can make a determination regarding the prejudicial effect of an ex parte
communication, it must first categorize the communication into one of three categories:
substantive, administrative, or housekeeping.” A substantive communication involves a
supplemental instruction on the law given to a jury and carries a presumption of prejudice. Id.
An administrative communication includes instructions regarding the availability of evidence
and instructions encouraging a jury to continue its deliberations.
Administrative
communications carry no presumption of prejudice. Id. Finally, housekeeping communications
involve general “housekeeping” matters, such as meal orders and restroom facilities, unrelated to
the case being decided. It is presumed that a defendant is not prejudiced by a housekeeping
communication, and a defendant must make a definite and firm showing to rebut the
presumption of no prejudice. Id. at 164.
The communication in this case was an administrative communication. It did not involve
an instruction regarding the law, which is characteristic of a substantive communication.
France, 436 Mich at 143. Moreover, the communication did not involve mere housekeeping
matters, but rather was akin to an instruction encouraging a jury to continue its deliberations.
Thus, the communication was administrative in nature. Id. Further, defendant has not
established that she was prejudiced by the communication. Contrary to defendant’s argument,
the trial court did not comment on the weight of the evidence and it merely encouraged the juror
to carry out her oath despite that the juror found the evidence to be emotionally disturbing. Even
considering the nature of the evidence, the juror indicated that she was unsure whether she would
be able to render a guilty verdict. In addition, the juror was able to effectively communicate with
the trial court, dispelling defendant’s assertion of a language barrier. Accordingly, defendant has
-2-
failed to establish prejudice resulting from the trial court’s ex parte communication with the
juror.
Defendant also argues that the ex parte communication involved a “critical stage” of the
proceedings and that the absence of counsel requires reversal. Defendant likens the
communication to a trial court’s reinstruction of the jury. As previously discussed, however, the
communication did not involve an instruction regarding the law, which is indicative of a
substantive communication. France, 436 Mich at 143. Defendant also contends that the
communication was a “critical stage” of the proceedings because counsel’s absence might have
hindered her right to fair trial. But because defendant has failed to show that she was prejudiced
by the communication, counsel’s absence did not infringe on defendant’s right to a fair trial.
Defendant has failed to establish that the communication constituted a “critical stage” of the
proceedings.
II. PROSECUTORIAL MISCONDUCT
Defendant argues that the prosecutor engaged in misconduct by failing to disclose a
promise made to Michael Sowards in exchange for his testimony and by failing to correct
Sowards’s false testimony that no agreements had been made in exchange for his testimony.
Because defendant did not object or raise this issue in the trial court, it is not preserved and our
review is limited to ascertaining whether there existed plain error that affected her substantial
rights. People v Brown, 279 Mich App 116, 134; 755 NW2d 664 (2008).
“Under MCR 6.201(B)(5), a prosecutor has a duty to disclose the details of a witness’s
plea agreement, immunity agreement, or other agreement in exchange for testimony.” People v
McMullan, 284 Mich App 149, 157; 771 NW2d 810 (2009). The focus of requiring disclosure in
such situations is to reveal factors that the jury may consider in weighing a witness’s testimony
and which may motivate the witness to give certain testimony. People v Atkins, 397 Mich 163,
174; 243 NW2d 292 (1976). Similarly, Brady v Maryland, 373 US 83; 83 S Ct 1194; 10 L Ed 2d
215 (1963), requires a prosecutor to “disclose any information that would materially affect the
credibility of his witnesses.” McMullan, 284 Mich App at 157.
To establish a Brady violation, a defendant must prove
(1) that the state possessed evidence favorable to the defendant; (2) that he did not
possess the evidence nor could he have obtained it himself with any reasonable
diligence; (3) that the prosecution suppressed the favorable evidence; and (4) that
had the evidence been disclosed to the defense, a reasonable probability exists
that the outcome of the proceedings would have been different. [Id., quoting
People v Lester, 232 Mich App 262, 281-282; 591 NW2d 267 (1998).]
Here, the record of Sowards’s sentencing hearing indicates that neither the prosecutor,
Sowards’s attorney, nor the trial court considered the agreement between the prosecutor and
Sowards to be a typical plea or sentencing agreement. Sowards’s attorney stated that Sowards
“agree[d] to testify and aid the Prosecutor’s Office, knowing that there was no plea agreement
other than just the recommendation from the Prosecutor to stay within the guidelines.” In
addition, the prosecutor indicated that she could not promise Sowards anything other than to ask
the trial court to sentence him within the guidelines. Further, the trial court stated, “you deserve
-3-
credit for the fact that you came into the courtroom and testified, knowing under those
circumstances that no agreement had been reached and you could, that testimony could be used
against you at trial.” The prosecutor’s promise to recommend a sentence within the guidelines,
however, was an “agreement for testimony” that the prosecutor was required to disclose under
MCR 6.201(B)(5). It was also information that might materially affect Sowards’s credibility and
favor defendant. Thus, the prosecutor was required to disclose the agreement pursuant to Brady,
373 US at 87, and McMullan, 284 Mich App at 157.
Notwithstanding the prosecutor’s failure to disclose the agreement, reversal is not
required because defendant has not satisfied the fourth prong of the Brady test. See McMullan,
284 Mich App at 157-158. Defendant has not demonstrated a reasonable probability of a
different result had the agreement been disclosed. Id. at 157. “A ‘reasonable probability’ is a
probability sufficient to undermine confidence in the outcome.” Lester, 232 Mich App at 282
(internal quotations and citation omitted). As discussed in section III, infra, the evidence against
defendant was overwhelming and established that only she, rather than Sowards, could have
committed the acts that caused her son’s death. Police officers independently confirmed that
Sowards was not present at the home at any time during the day on June 11, 2007, and thus could
not have caused the child’s head injuries. The evidence also established that the child’s severe
head injuries could not have been caused by a typical household accident or fall. Thus, it is not
reasonably probable that the result would have been different if the jury had been aware that
there was an agreement to recommend that Sowards be sentenced within the sentencing
guidelines range.
Defendant also argues that the prosecutor committed misconduct by failing to correct
Sowards’s false testimony. A conviction obtained through the knowing use of perjured
testimony offends a defendant’s due process protections guaranteed under the Fourteenth
Amendment. Napue v Illinois, 360 US 264, 269; 79 S Ct 1173; 3 L Ed 2d 1217 (1959). Such a
conviction requires reversal and a new trial if “the ‘“false testimony could . . . in any reasonable
likelihood have affected the judgment of the jury[.]”’” People v Wiese, 425 Mich 448, 454; 389
NW2d 866 (1986), quoting Giglio v United States, 405 US 150, 154; 92 S Ct 763; 31 L Ed 2d
104 (1972), quoting Napue, 360 US at 271.
As previously recognized, there is no reasonable likelihood that Sowards’s denial of any
promises of leniency could have affected the jury’s verdict.1 The evidence overwhelmingly
established that the child received massive nonaccidental head injuries during a time when only
defendant and the child’s three-year-old sister were with him. Thus, although defendant
attempted to deflect all responsibility from herself and show that Sowards caused the child’s
head injuries, the evidence showed otherwise. Because there exists no reasonable likelihood that
Sowards’s denial of leniency could have affected the jury’s verdict, reversal is not warranted.
Wiese, 425 Mich at 454.
1
Although Sowards also testified that there was not an agreement with the prosecutor regarding
a reduced sentence “or anything else relative to this,” this testimony was not made in jury’s
presence and thus could not have affected its verdict.
-4-
Defendant further argues that the prosecutor committed misconduct by admitting
evidence of her post-arrest silence for impeachment purposes. We disagree. Defendant relies on
Doyle v Ohio, 426 US 610, 619; 96 S Ct 2240; 49 L Ed 2d 91 (1976), in which the Court held
that the use of a defendant’s “silence, at the time of arrest and after receiving Miranda[2]
warnings, violate[s] the Due Process Clause of the Fourteenth Amendment.” Defendant
challenges the prosecutor’s elicitation of Officer Marlene Niedermeier’s testimony that
defendant did not inquire regarding her son’s welfare, the testimony of Child Protective Services
(CPS) worker Krystal Magnan that defendant did not give a sufficient explanation regarding the
cause of the child’s injuries, and Dr. Marcus DeGraw’s testimony that defendant did not provide
a sufficient explanation for the cause of the child’s injuries. Because defendant’s conversations
with these witnesses occurred before her arrest, their testimony did not implicate Doyle. See
People v Borgne, 483 Mich 178, 187; 768 NW2d 290 (2009), amended 485 Mich 868 (2009).
Similarly, Detective Kenneth Marsee’s testimony did not implicate Doyle because
defendant waived her Miranda protections and answered Detective Marsee’s and Detective Chad
Richardson’s questions. A “defendant’s right to due process is implicated only where his silence
is attributable to either an invocation of his Fifth Amendment right or his reliance on the
Miranda warnings.” People v Solmonson, 261 Mich App 657, 664-665; 683 NW2d 761 (2004).
Because defendant did not invoke her right to silence under the Fifth Amendment or Miranda,
Marsee’s testimony did not implicate her right to due process. As such, the prosecutor was free
to cross-examine defendant regarding her statement to the police.
III. SUFFICIENCY OF THE EVIDENCE
Defendant next argues that the evidence was insufficient to establish the intent elements
of first-degree child abuse and felony murder. We disagree. When determining whether
sufficient evidence exists to support a conviction, a court must view the evidence in the light
most favorable to the prosecution and determine whether a rational fact-finder could conclude
that the prosecutor proved every element of the crime charged beyond a reasonable doubt.
People v Sherman-Huffman, 466 Mich 39, 40-41; 642 NW2d 339 (2002); People v Nowack, 462
Mich 392, 399-400; 614 NW2d 78 (2000). A reviewing court must draw all reasonable
inferences and make credibility determinations in support of the jury’s verdict. Nowack, 462
Mich at 400. Circumstantial evidence and reasonable inferences drawn therefrom can constitute
sufficient proof of the elements of an offense. Id. “‘Even in a case relying on circumstantial
evidence, the prosecution need not negate every reasonable theory consistent with the
defendant’s innocence, but need merely introduce evidence sufficient to convince a reasonable
jury in the face of whatever contradictory evidence the defendant may provide.’” People v
Hardiman, 466 Mich 417, 423-424; 646 NW2d 158 (2002), quoting People v Konrad, 449 Mich
263, 273 n 6; 536 NW2d 517 (1995).
To establish first-degree felony murder, the prosecution was required to prove an intent to
kill, to cause great bodily harm, or to create a high risk of death or bodily harm knowing that
death or bodily harm will most likely result. MCL 750.316(1)(b); Carines, 460 Mich at 758-759.
2
Miranda v Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed 2d 694 (1966).
-5-
Similarly, to establish first-degree child abuse, the prosecution was required to show that
defendant knowingly or intentionally caused serious physical or mental harm. MCL
750.136b(2); People v Maynor, 470 Mich 289, 295; 683 NW2d 565 (2004). The evidence
overwhelmingly established the intent elements.
Defendant had a history of mistreating her son and giving his sister preferential treatment.
Caring for her son appeared to be an annoyance to defendant, who had left the child in a playpen
in a dark basement, in the garage, or in his car seat covered with a blanket when he was younger.
Defendant admitted that she did not seek medical treatment for her son’s various maladies,
including his vision impairment. She also admitted that, at the time of her son’s death, he could
barely see. When her son was admitted to the hospital, he had numerous nonlife-threatening
injuries, including bruising all over his body, a gash on his forehead that was healing, a deformed
and possibly broken left index finger, and missing toenails. He had also suffered a traumatic and
life-threatening brain injury that was caused by nonaccidental blunt force trauma. Dr. DeGraw
testified that the child’s head injuries could not have been caused by a household accident or fall
and that they were more characteristic of being thrown from a car during an automobile accident,
being struck with a baseball bat, or falling from a high-story window. Dr. DeGraw opined that
any reasonable person would have realized immediately after the trauma that the child was
seriously injured.
The evidence showed that on the day the child received his massive head injuries,
Sowards left the home before 7:00 a.m. and went to work. When he left work at approximately
4:30 p.m., he went to his uncle’s home to repair his truck before returning home. Police officers
confirmed Sowards’s whereabouts that day by talking to his employer, obtaining a copy of his
time card, verifying the existence of a pay phone that Sowards used, talking to Sowards’s uncle,
and obtaining a copy of a receipt from an auto parts store. When Sowards arrived home, he
discovered the child lying facedown on his bed, unresponsive, and barely breathing. Although
defendant went with Sowards to the hospital, she did not go inside and left in the truck. She
went to her uncle Matthew Conklin’s home and told him that her son had fallen and that she
thought that he was having seizures. Defendant then admitted that if she went to the hospital,
she would be arrested and her daughter would be removed from her care.
When the police arrived at defendant’s home that night, they discovered a bloodsplattered pile of laundry in the utility room that included children’s bedding and items in the
washing machine that smelled of vomit and contained blood spots. They also found dried blood
on the carpet in the child’s bedroom, on two of the bedroom walls, on the interior walls of the
closet and closet door, and on the underside of his mattress. Moreover, police officers found an
8- to 12-inch metal pipe with a rubberized handle on the kitchen windowsill.
Further, defendant provided various explanations for her son’s injuries and failed to
sufficiently explain how his head injuries occurred. For example, defendant told Sowards that
the injury to one of the child’s toenails occurred when a Tonka truck fell on the toenail. In her
statement to the police, however, defendant claimed that the missing toenails were caused by a
fungus. Defendant also told her uncle at the hospital that her son’s eye problems were caused
because he was allergic to the medication that he was being administered. This explanation
conflicted with evidence that the child had suffered chronic eye problems and, according to
defendant, he could “barely see” at the time that he was admitted to the hospital.
-6-
Finally, defendant told Dr. DeGraw, Magnan, Detective Brian Kijewski, Detective
Richardson, and Detective Marsee that after Sowards left for work on the morning on June 11,
2007, he did not return home until 7:00 or 8:00 p.m. This conflicted with defendant’s trial
testimony that Sowards returned home after work at approximately 4:30 p.m., screamed at the
child, and left the child lying in his bed. Viewing the evidence in the light most favorable to the
prosecution, a rational fact-finder could conclude that the prosecution proved the intent elements
of the offenses beyond a reasonable doubt. Sherman-Huffman, 466 Mich at 40-41; Nowack, 462
Mich at 399-400.
IV. JURY INSTRUCTIONS
Defendant next argues that the trial court’s felony-murder jury instruction was erroneous
because it did not require the jury to find that the victim died as a result of blunt head injuries
caused by defendant. We disagree. We review claims of instructional error de novo. People v
Fennell, 260 Mich App 261, 264; 677 NW2d 66 (2004).
Jury instructions must fairly present the issues to be tried and sufficiently protect a
defendant’s rights. People v Aldrich, 246 Mich App 101, 124; 631 NW2d 67 (2001). The
instructions must include all elements of the charged offenses, and must not exclude relevant
issues, defenses, and theories if supported by the evidence. People v McGhee, 268 Mich App
600, 606; 709 NW2d 595 (2005). “If the jury instructions, taken as a whole, sufficiently protect
a defendant’s rights, reversal is not required.” People v Huffman, 266 Mich App 354, 371-372;
702 NW2d 621 (2005).
The trial court instructed the jury as follows regarding first-degree felony murder:
To prove this charge, the prosecutor must prove each of the following elements
beyond a reasonable doubt. First, that Crystal Conklin caused the death of [the
child] and it --- and that that is that [the child] died as the result of blunt head
injuries. Second, that Crystal Conklin had one of these three states of mind: She
intended to kill or she intended to do great bodily harm to [the child] or she
knowingly created a very high risk of death or great bodily harm knowing that
death or such harm would be the likely result of her actions. Third, that when she
did the act that caused the death of [the child], Crystal Conklin was committing
the crime of first-degree child abuse.
Viewed as a whole, the court’s instructions included all elements of felony murder and
protected defendant’s rights. The instructions required the jury to find that defendant caused the
child’s death and also required that it find that she either intended to kill him or knowingly
created a very high risk of death or great bodily harm, knowing that death would likely result.
The instructions also required the jury to conclude that defendant was committing first-degree
child abuse at the time she caused the child’s death. Read as a whole, the instructions fairly
presented that the jury was required to find that defendant caused the child’s blunt head injuries
in order to convict defendant of felony murder. Aldrich, 246 Mich App at 124. Accordingly,
reversal is not required. Huffman, 266 Mich App at 371-372.
V. INEFFECTIVE ASSISTANCE OF COUNSEL
-7-
Defendant next argues that she was denied the effective assistance of counsel for several
reasons. We disagree. “Whether a person has been denied effective assistance of counsel is a
mixed question of fact and constitutional law.” People v LeBlanc, 465 Mich 575, 579; 640
NW2d 246 (2002). This Court reviews the trial court’s factual findings for clear error and
questions of constitutional law de novo. Id.
To establish a claim of ineffective assistance of counsel, a defendant must demonstrate
that his counsel’s performance fell below an objective standard of reasonableness and that
counsel’s representation so prejudiced the defendant that it deprived him of a fair trial. People v
Pickens, 446 Mich 298, 302-303; 521 NW2d 797 (1994); People v Moorer, 262 Mich App 64,
75-76; 683 NW2d 736 (2004). With respect to the prejudice requirement, a defendant must
demonstrate a reasonable probability that, but for counsel’s errors, the result of the proceeding
would have been different. People v Toma, 462 Mich 281, 302-303; 613 NW2d 694 (2000);
Moorer, 262 Mich App at 75-76. A defendant must also overcome the strong presumption that
counsel’s actions constituted sound trial strategy. Toma, 462 Mich at 302.
Defendant first argues that counsel was ineffective for failing to move for a change of
venue because of extensive pretrial publicity. A change of venue may be granted where justice
demands or where statutory law provides. People v Jendrzejewski, 455 Mich 495, 499-500; 566
NW2d 530 (1997). Community prejudice based on extensive, highly inflammatory pretrial
publicity can constitute a circumstance warranting a change of venue where such prejudice
amounts to actual bias and the inflammatory pretrial publicity saturates the community to such
an extent that the entire jury pool is tainted. Id. at 500-501.
Here, the record shows that the jury pool was not tainted by extensive pretrial publicity.
Defense counsel testified at the Ginther3 hearing that there was very little publicity in this case
other than during the two or three days following the child’s death. The trial court also
determined that the pretrial publicity was limited and restricted to defendant’s preliminary
examination, which occurred approximately eight months before trial. In addition, both the trial
court and defense counsel indicated that none of the prospective jurors had heard about this case.
Thus, the record fails to show that inflammatory pretrial publicity tainted the jury pool. As such,
defense counsel was not ineffective for failing to move for a change of venue. Defense counsel
does not render ineffective assistance by failing to assert futile arguments. People v Snider, 239
Mich App 393, 425; 608 NW2d 502 (2000).
Defendant next argues that counsel was ineffective for failing to call certain lay
witnesses, including a witness who could corroborate Sowards’s acts of violence against
defendant and the child at the Sunnybrook Hotel. “Decisions regarding what evidence to present
and whether to call or question certain witnesses are presumed to be matters or trial strategy, and
this Court will not substitute its judgment for that of counsel regarding matters of trial strategy.”
People v Davis, 250 Mich App 357, 368; 649 NW2d 94 (2002).
3
People v Ginther, 390 Mich 436, 443; 212 NW2d 922 (1973).
-8-
Defense counsel testified that he hired Michael Burn, a private investigator, who spoke
with John Johnston at the Sunnybrook Motel. Johnston indicated that he called the police
regarding a commotion in the hotel room, but he did not know what occurred and did not observe
any assault. Because Johnston could not have corroborated defendant’s claim that Sowards was
violent toward her, counsel’s failure to call Johnston was not objectively unreasonable. Davis,
250 Mich App at 369. Further, the record does not support defendant’s assertion that she
informed counsel of other potential witnesses from the Sunnybrook Hotel, including “Randy,”
“Jerry,” “Steve,” and “Sarah.”
Defendant also argues that counsel was ineffective for failing to call a neighbor who lived
next door to defendant’s home at 2215 Jarvis who could testify that Sowards came home after
work on June 11, 2007. Defense counsel testified that Burn attempted to go to 2217 Jarvis, but
discovered that the address did not exist. Burn went to 2207 Jarvis, but nobody was at that
residence. He then searched a database and discovered that Molly Thompson owned the
residence at 2207 Jarvis. He called the home and spoke to Shane Vanostrand, Thompson’s
husband, who recalled defendant but did not have any specific recollection of the events that
occurred on June 11, 2007. Because defense counsel’s investigation revealed that Vanostrand
could not have testified that Sowards came home after work on June 11, 2007, defendant again
has failed to establish that counsel’s failure to call him was objectively unreasonable. Davis, 250
Mich App at 369.
Defendant also complains that counsel failed to subpoena her brother, Craig Conklin. At
the Ginther hearing, defense counsel did not recall defendant asking him to subpoena Craig and
testified that he represented Craig a few times in court and that Craig still owed him money.
Counsel emphatically denied that he refused to call Craig to testify because Craig owed him
money. Defendant contends that Craig’s testimony would have corroborated her testimony and
contradicted Sowards’s testimony. In particular, defendant references a Sterling Heights Police
Department dispatch log that appears to reflect that Craig called the police on one occasion after
defendant had called him and told him that Sowards had kicked in the bedroom door and
assaulted her previously. Even if counsel had refused to subpoena Craig contrary to defendant’s
request, as she claims, defendant has not overcome the presumption that counsel’s decision not
to call Craig was reasonable sound trial strategy. Davis, 250 Mich App at 369. The record does
not indicate in what capacity counsel represented Craig previously, and Craig may have been
subject to impeachment had he testified. Moreover, the dispatch log refers to an incident that
occurred on June 19, 2005, at an address in Sterling Heights. Thus, Craig’s testimony would not
have assisted the jury in determining the events that occurred on June 11, 2007, or defendant’s
treatment of the child during the two years previous to that date. Accordingly, defendant has not
shown that she was prejudiced by counsel’s failure to subpoena Craig. Toma, 462 Mich at 302303; Moorer, 262 Mich App at 75-76.
Defendant also argues that counsel was ineffective for failing to call her uncle Ronald
Conklin to testify. Counsel testified that he spoke to Ronald, but Ronald declined to testify.
Counsel claimed that he sought to question Ronald about an altercation that he had with
Sowards, but Ronald refused to testify about the incident. At the Ginther hearing, Ronald
initially denied that he refused to testify and claimed that he would have done so had he been
called to testify at trial. On cross-examination, however, he admitted that his name was on
-9-
defense counsel’s witness list and that counsel sought to present his testimony. Ronald also
admitting declining to testify:
Q. And, at some point in time, you indicated you would rather not testify, is that
correct?
A. Yes, ma’am.
Q. So, you did have an opportunity to speak at the trial and chose not to, is that
correct?
A. Yes, ma’am.
In light of this record, defendant has failed to rebut the presumption that counsel’s failure to call
Ronald as a witness was sound trial strategy. Davis, 250 Mich App at 369.
Defendant further argues that counsel was ineffective for failing to subpoena various
other lay witnesses, including Tammy Stockum, William Malinzack, Bryan Swan, Jeremy
Schiefka, and police officers who were called to specific residences. At the Ginther hearing,
counsel denied that defendant asked him to call these witnesses. More importantly, defendant
did not establish the substance of the witnesses’ purported testimony or explain how their
testimony would have assisted her defense. A defendant “may not merely announce his position
and leave it to this Court to discover and rationalize the basis for [her] claims . . . .” People v
Matuszak, 263 Mich App 42, 59; 687 NW2d 342 (2004) (citation and quotations omitted). Thus,
once again, defendant has not overcome the presumption that counsel’s failure to call the
witnesses was sound trial strategy. Davis, 250 Mich App at 369.
Defendant next argues that counsel was ineffective for failing to call Dr. Bader J. Cassin
to testify. Counsel admitted that he hired Dr. Cassin, who had given counsel a letter stating that
Dr. DeGraw had exaggerated the description and character of the child’s injuries and that
defendant’s explanation of the cause of the injuries was at least credible. The letter further stated
that the characterization of the injuries as resulting from nonaccidental trauma may be incorrect.
Counsel admitted that Dr. Cassin’s testimony could have “possibly” impeached Dr. DeGraw’s
testimony and supported defendant’s theory that she did not intentionally harm her son. Counsel
listed Dr. Cassin’s name on his witness list, but when he spoke to Dr. Cassin before trial, Dr.
Cassin stated that he would not be able to assist in the matter. As a result of that conversation,
counsel elected not to call Dr. Cassin to testify. Thus, the record indicates that counsel decided
not to call Dr. Cassis as a matter of strategy, and defendant has not rebutted the presumption of
sound strategy. Davis, 250 Mich App at 369.
Defendant next argues that counsel failed to effectively cross-examine Sowards regarding
his physical abuse of the child. Counsel denied that defendant informed him of any physical
abuse that Sowards inflicted on the child at the Sunnybrook Hotel. Rather, counsel testified that
defendant informed him only that Sowards had physically abused her at the hotel. Counsel also
denied that defendant informed him that Sowards had flipped the child upside side when he was
buckled into his car seat or flipped him onto the floor. Counsel admitted that defendant had
indicated that Sowards inflicted physical violence on the child on one or two occasions. As
counsel explained, however, he did cross-examine Sowards regarding his physical abuse of the
-10-
child during trial, but Sowards denied that he abused the child. Although defendant complains
that counsel failed to effectively cross-examine Sowards so as to elicit an admission regarding
his physical abuse of the child, this did not render counsel’s performance below an objective
standard of reasonableness. Pickens, 446 Mich at 302-303; Moorer, 262 Mich App at 75-76.
Defendant next argues that counsel failed to effectively cross-examine Sowards regarding
his motivation to testify. Counsel testified that he cross-examined Sowards regarding his
second-degree child abuse charge, but he was not privy to any agreement between Sowards and
the prosecution. In addition, defendant contends that counsel failed to discover and investigate
Sowards’s criminal record involving theft or dishonesty. Defendant references a 2001
conviction for retail fraud. But even if counsel had further cross-examined Sowards regarding
his motivation to testify or presented evidence regarding Sowards’s 2001 retail fraud conviction,
it is not reasonably probable that the result of trial would have been different. Toma, 462 Mich
at 302-303; Moorer, 262 Mich App at 75-76. Thus, defendant has not established the requisite
prejudice to establish a claim of ineffective assistance of counsel.
Defendant next argues that counsel was ineffective for failing to present medical
evidence regarding acute dermatitis, Apraxia, and the fact that defendant took the child to the
Plumbrook medical facility for treatment of his dermatitis in February 2006. Counsel testified
that he received a copy of the Plumbrook medical records but was unaware of a condition known
as acute dermatitis until after trial. Counsel also testified that he was not familiar with a
condition known as Apraxia. Thus, counsel could not have presented evidence regarding acute
dermatitis or Apraxia at the time of defendant’s trial. Moreover, considering that the child died
of blunt head injuries, defendant has not demonstrated that she was prejudiced by counsel’s
failure to present evidence that defendant took the child for treatment regarding his dermatitis.
Toma, 462 Mich at 302-303; Moorer, 262 Mich App at 75-76.
Defendant next argues that counsel was ineffective for failing to cross-examine
Sowards’s mother, Elizabeth Herd, regarding her failure to seek medical treatment for the child
while he was in her care for several days. Defendant has not demonstrated that Herd’s failure to
seek medical treatment could have assisted her defense. Further, counsel testified that defendant
never informed him that Herd had physical custody of the child on occasion and an opportunity
to seek medical treatment for him. Accordingly, this claim cannot succeed.
Defendant next contends that counsel was ineffective for allowing the prosecutor to call
Dr. Daniel Spitz to testify out of turn, at the conclusion of the case. As defense counsel
explained, and the trial court recognized, calling witnesses out of order is a common trial
practice that does not impact the trial. The jury was instructed to treat all evidence fairly. Thus,
defendant has failed to establish either deficient performance or resulting prejudice with respect
to this claim. Toma, 462 Mich at 302-303; Moorer, 262 Mich App at 75-76.
Defendant next argues that counsel was ineffective for failing to move to suppress
defendant’s statements to the police. Counsel testified that he did not seek suppression of
defendant’s police statements because she made no admissions in the statements and showed
extreme emotion when she was informed that the child had died. Counsel believed that
defendant’s recorded statement would assist her defense. Defendant has not overcome the
presumption that counsel’s decision was sound strategy. Toma, 462 Mich at 302. Moreover, as
-11-
discussed in section VIII, infra, any motion to suppress would have been futile. Counsel is not
ineffective for failing to make a futile motion. Snider, 239 Mich App at 425.
Defendant next argues that counsel was ineffective for failing to assert a battered woman
syndrome defense. We again disagree. In People v Christel, 449 Mich 578, 580; 537 NW2d 194
(1995), the Court explained:
Generally, battered woman syndrome testimony is relevant and helpful
when needed to explain a complainant’s actions, such as prolonged endurance of
physical abuse accompanied by attempts at hiding or minimizing the abuse,
delays in reporting the abuse, or recanting allegations of abuse.
Thus, battered woman syndrome testimony arguably may have been helpful to explain why
defendant did not initially disclose her contention that Sowards returned home from work at
approximately 4:30 p.m. on June 11, 2007, and screamed at the child. But such testimony would
not have otherwise supported her defense that she did not intentionally injure the child or show
that Sowards, rather than defendant, caused the child’s head injuries. Furthermore, during trial,
defendant testified about Sowards’s physical abuse directed toward her. She asserted that she
was afraid to tell the police that Sowards came home after work because she was scared of what
he would do to her and her unborn child. Thus, because defendant presented evidence of
Sowards’s physical abuse at trial, including her reasons for not immediately implicating
Sowards, she has not demonstrated that she was prejudiced as a result of counsel’s failure to
assert a battered woman syndrome defense. Toma, 462 Mich at 302-303; Moorer, 262 Mich App
at 75-76.
Defendant next argues that counsel was ineffective for allowing certain witnesses to offer
testimony based on hearsay and speculation. Defendant specifically challenges Dr. Edward
O’Malley’s testimony that the child’s eye problems could have been caused by malnourishment,
Detective Marsee’s testimony that defendant did not ask other police officers about the child’s
condition because she was not in the presence of other officers while she was detained, and
Magnan’s testimony that defendant beat the child, did not like him, did not want him, and was
mean to him. Defendant’s argument lacks merit because the witnesses did not testify based on
hearsay and speculation. Dr. O’Malley offered a medical opinion that chronic malnourishment
could cause the type of eye problem that the child experienced. Marsee’s testimony was not
speculative because it was based on his knowledge that defendant was being detained in a
secluded area. Magnan’s testimony simply described the allegations contained in a CPS
complaint made in 2005. Thus, defendant has not established that counsel was ineffective for
failing to object to the testimony, given that any objection would have been futile. People v
Milstead, 250 Mich App 391, 401; 648 NW2d 648 (2002).
Defendant next argues that counsel was ineffective for failing to introduce the child’s
birth certificate as evidence. Defendant contends that the space indicating the father’s name on
the birth certificate was left blank because Sowards claimed that he was not the child’s father and
would not accept responsibility for him. Considering the overwhelming evidence against
defendant, evidence that Sowards was not listed as the child’s father on his birth certificate
would not have affected the outcome of the proceeding. Thus, defendant was not prejudiced.
Toma, 462 Mich at 302-303; Moorer, 262 Mich App at 75-76.
-12-
Finally, defendant argues that counsel was ineffective for failing to object at sentencing
to information in the presentence investigation report (PSIR) that the child was blind. The PSIR
stated that the child “had an eye infection in both eyes which caused him to become blind[.]”
The PSIR also reflected a medical opinion that the child suffered “severe malnourishment which
caused the infection to both eyes resulting in blindness.” These statements were consistent with
the trial testimony. Dr. O’Malley testified that the child’s vision was severely compromised and
that he might be able to count fingers in front of him only at a very close range. Dr. O’Malley
opined that chronic malnourishment could cause the cornea problem that the child experienced.
Further, defendant admitted at trial that the child could “barely see” and that she told the police
officers that he was unable to see. Accordingly, because the testimony supported the indication
of the child’s blindness in the PSIR, counsel was not ineffective for failing to object. Milstead,
250 Mich App at 401.
VI. DOUBLE JEOPARDY
Defendant argues that her convictions of both felony murder and the underlying felony
violate her double jeopardy protections. We disagree. “A double jeopardy challenge presents a
question of constitutional law that this Court reviews de novo.” People v Nutt, 469 Mich 565,
573; 677 NW2d 1 (2004).
“The United States and Michigan Constitutions protect a person from being twice placed
in jeopardy for the same offense. US Const, Am V; Const 1963, art 1, § 15.” Nutt, 469 Mich at
574. The Double Jeopardy Clause protects against (1) a second prosecution for the same offense
following either acquittal or conviction, and (2) multiple punishments for the same offense.
People v Smith, 478 Mich 292, 299; 733 NW2d 351 (2007). In Smith, our Supreme Court held
that the term “same offense” in the context of the “multiple punishments” strand of double
jeopardy jurisprudence has the same meaning as that term connotes in the “successive
prosecutions” strand of our jurisprudence. Id. at 315-316. Thus, in the absence of clear
legislative intent to impose multiple punishments, courts must apply the Blockburger4 “same
elements” test to determine whether multiple punishments are constitutionally permitted. Id. at
316. Under the “same elements” test, multiple punishments are permissible as long as each of
the crimes of which a defendant is convicted contains an element that the other does not. Id. at
296, 316-319.
In People v Ream, 481 Mich 223, 240; 750 NW2d 536 (2008), our Supreme Court held
that the “same elements” test applies when a defendant is convicted of both first-degree felony
murder and the underlying predicate felony. The Court stated that “convicting and sentencing a
defendant for both first-degree felony murder and the predicate felony does not violate the
‘multiple punishments’ strand of the Double Jeopardy Clause if each offense has an element that
the other does not.” Id.
To prove first-degree felony murder, the prosecution must prove: (1) the killing of a
human being, (2) with the intent to kill, to cause great bodily harm, or to create a high risk of
4
Blockburger v United States, 284 US 299; 52 S Ct 180; 76 L Ed 306 (1932).
-13-
death or bodily harm knowing that death or bodily harm will most likely result, (3) during the
commission, attempted commission, or assisted commission of any one of several enumerated
felonies, including first-degree child abuse. MCL 750.316(1)(b); Carines, 460 Mich at 758-759.
To establish first-degree child abuse, the prosecution must show that the defendant knowingly or
intentionally caused serious physical or mental harm to a child. MCL 750.136b(2); Maynor, 470
Mich at 295. Because each offense contains an element that the other does not, the offenses are
not the “same offense” within the meaning of the Double Jeopardy Clause. See Ream, 481 Mich
at 241. Thus, defendant’s convictions of both offenses do not violate her double jeopardy
protections.
VII. MRE 404(b) EVIDENCE
Defendant next challenges the trial court’s admission of other evidence of the child’s
numerous injuries, medical opinions that the child suffered from neglect and abuse, and
defendant’s alleged long-term mistreatment of the child. We review for an abuse of discretion
the admission of other acts evidence at trial. People v Johnigan, 265 Mich App 463, 465; 696
NW2d 724 (2005). An abuse of discretion occurs when the trial court’s decision falls outside the
range of reasonable and principled outcomes. People v Young, 276 Mich App 446, 448; 740
NW2d 347 (2007).
MRE 404(b)(1) governs the admission of prior bad acts evidence. Whether other acts
evidence is admissible under MRE 404(b)(1) depends on four factors. First, the evidence must
be offered for a permissible purpose, i.e., one other than to show the defendant’s character or
propensity to commit the charged crime. Knox, 469 Mich at 509. Second, the evidence must be
relevant under MRE 402. Id. Third, unfair prejudice must not substantially outweigh the
probative value of the evidence under MRE 403. Id. Fourth, the trial court, if requested, may
provide a limiting instruction to the jury under MRE 105. Id.
Defendant contends that the evidence of the child’s numerous injuries, medical opinions
that the child suffered from neglect and abuse, and defendant’s alleged long-term mistreatment
of the child was not admissible for a proper purpose under MRE 404(b), but rather was
introduced only to show her bad character. She argues that because her defense was that she
never injured the child, the evidence was not relevant to show her “intent, preparation, scheme,
plan, or system,” as permitted under MRE 404(b)(1).
Contrary to defendant’s argument, the evidence was relevant to establish her motive,
intent, scheme, plan, and absence of accident, which are all proper purposes under MRE 404(b).
“Relevant evidence” is “evidence having any tendency to make the existence of any fact that is
of consequence to the determination of the action more probable or less probable than it would
be without the evidence.” MRE 401. Evidence of defendant’s long-term mistreatment of the
child and his numerous nonlife-threatening injuries tended to establish defendant’s motivation,
intent, scheme, and plan in causing the head injuries that led to the child’s death. This evidence
also tended to show that the child’s head injuries did not occur as a result of an accident, such as
a fall from a sink when defendant was cleaning the child’s eyes.
Regarding defendant’s intent in particular, to convict defendant of first-degree felony
murder, the prosecution was required to prove that defendant killed the child with the intent to
kill, to cause great bodily harm, or to create a high risk of death or bodily harm knowing that
-14-
death or bodily harm will most likely result. Carines, 460 Mich at 758-759. Similarly, to
convict defendant of first-degree child abuse, the prosecution was required to show that
defendant knowingly or intentionally caused the child serious physical or mental harm. Maynor,
470 Mich at 295. Defendant’s general denial of guilt placed all elements of the offenses,
including the intent element, at issue. People v Sabin (After Remand), 463 Mich 43, 60; 614
NW2d 888 (2000). Thus, the evidence was relevant and admissible for a proper purpose under
MRE 404(b).
Defendant also argues that the prejudicial effect of the evidence substantially outweighed
its probative value. “Evidence is unfairly prejudicial when there exists a danger that marginally
probative evidence will be given undue or preemptive weight by the jury.” People v Crawford,
458 Mich 376, 398; 582 NW2d 785 (1998). “The danger the rule seeks to avoid is that of unfair
prejudice, not prejudice that stems only from the abhorrent nature of the crime itself.” People v
Starr, 457 Mich 490, 500; 577 NW2d 673 (1998). The probative value of the other acts evidence
was relevant to rebut defendant’s theory that she did not harm the child and that either Sowards
caused the child’s head injuries or his injuries occurred by accident. Thus, the evidence was not
merely marginally probative, but was probative of the ultimate issue, i.e., whether defendant
committed the offenses charged. See Sabin, 463 Mich at 71. The trial court did not abuse its
discretion in determining that the prejudicial effect of the evidence did not substantially
outweigh its probative value.
VIII. DEFENDANT’S STATEMENTS TO THE POLICE
Defendant contends that her statements to the police should have been suppressed
because they were involuntary and elicited in violation of her state and federal constitutional
rights to representation by counsel. We disagree. Because defendant failed to preserve this issue
for our review by raising it below, our review is limited to plain error affecting her substantial
rights. Carines, 460 Mich at 763, 774; Knapp, 244 Mich App at 375.
“A statement obtained from a defendant during a custodial interrogation is admissible
only if the defendant voluntarily, knowingly, and intelligently waived [her] Fifth Amendment
rights.” People v Akins, 259 Mich App 545, 564; 675 NW2d 863 (2003). “Whether a
defendant’s statement was knowing, intelligent, and voluntary is a question of law, which the
court must determine under the totality of the circumstances.” People v Tierney, 266 Mich App
687, 707; 703 NW2d 204 (2005).
We first address whether defendant was denied her constitutional rights to representation
by counsel. Initially, we note that defendant references her federal Sixth Amendment right to
counsel as well as her corresponding state right to counsel under Const 1963, art I, § 20.
Because these rights to counsel attach only after the initiation of adversarial judicial proceedings,
they are not implicated in this case where defendant’s statements to the police were given before
the initiation of judicial proceedings. See People v Hickman, 470 Mich 602, 607; 684 NW2d
267 (2004); see also People v Richert (After Remand), 216 Mich App 186, 194; 548 NW2d 924
(1996) (recognizing that Const 1963, art I, § 20 is construed identical to its federal counterpart,
US Const, Am VI).
Defendant also contends that her statements to the police were elicited in violation of her
Fifth Amendment right to counsel and corresponding state constitutional right to counsel
-15-
guaranteed under Const 1963, art I, § 17. The procedural safeguards adopted in Miranda apply
only during custodial interrogation. People v Marsack, 231 Mich App 364, 374; 586 NW2d 234
(1998). Moreover, the right to counsel under Const 1963, art I, § 17 is construed identical to the
federal Fifth Amendment right to counsel. People v Geno, 261 Mich App 624, 628; 683 NW2d
687 (2004). Thus, the rights to counsel guaranteed under the Fifth Amendment and Const 1963,
art I, § 17 attach only during custodial interrogation.
Defendant was not in custody when she gave her first statement to the police on June 12,
2007. As such, her rights to counsel under the Fifth Amendment and Const 1963, art I, § 17
were not implicated.
Because defendant was in custody when she gave her second statement to the police on
June 13, 2007, this statement did implicate her constitutional rights to counsel. However, the
record shows that defendant validly waived her rights to counsel and that her waiver was
knowingly and intelligently made. “To establish that a defendant’s waiver of his Fifth
Amendment right was knowingly and intelligently made, ‘the state must present evidence
sufficient to demonstrate that the accused understood that he did not have to speak, that he had
the right to the presence of counsel, and that the state could use what he said in a later trial
against him.’” Tierney, 266 Mich App at 709, quoting People v Cheatham, 453 Mich 1, 29; 551
NW2d 355 (1996). Before defendant gave her second statement to the police, Detective Marsee
advised her of her Miranda rights. He informed her that she had the right to remain silent and
not answer any questions, that anything she said could be used against her, and that she had the
right to have an attorney present. Defendant initialed the constitutional rights form next to each
of the five rights and signed the form, which also indicated that she had not been threatened or
promised anything and that she wished to make a statement. Defendant also indicated that she
understood the English language. Moreover, she appeared calm and relaxed at the time that she
waived her rights to counsel, and there is no indication that she ever requested an attorney. Thus,
the record shows that defendant validly waived her constitutional rights to counsel.
Defendant also contends that her statements to the police were involuntary.5 In
determining whether a statement to the police was freely and voluntarily made, this Court
reviews the totality of the circumstances surrounding the making of the statement. People v
Cipriano, 431 Mich 315, 334; 429 NW2d 781 (1988); People v McPherson, 263 Mich App 124,
137; 687 NW2d 370 (2004). The test of voluntariness is whether, based on the totality of the
circumstances, “the confession is ‘the product of an essentially free and unconstrained choice by
its maker,’ or whether the accused’s ‘will has been overborne and his capacity for selfdetermination critically impaired[.]’” Cipriano, 431 Mich at 333-334, quoting Culombe v
Connecticut, 367 US 568, 602; 81 S Ct 1860; 6 L Ed 2d 1037 (1961). Factors to consider when
making this determination include:
5
Although defendant was not in custody when she gave her first statement to the police, even
noncustodial interrogation may, in some situations, give rise to an involuntary statement.
Beckwith v United States, 425 US 341, 347-348; 96 S Ct 1612; 48 L Ed 2d 1 (1976).
-16-
the age of the accused; his lack of education or his intelligence level; the extent of
his previous experience with the police; the repeated and prolonged nature of the
questioning; the length of the detention of the accused before he gave the
statement in question; the lack of any advice to the accused of his constitutional
rights; whether there was an unnecessary delay in bringing him before a
magistrate before he gave the confession; whether the accused was injured,
intoxicated or drugged, or in ill health when he gave the statement; whether the
accused was deprived of food, sleep, or medical attention; whether the accused
was physically abused; and whether the suspect was threatened with abuse. [Id. at
334.]
Defendant argues that her statements to the police were involuntary because she was
young, emotionally devastated, had no prior experience with the criminal justice system, was
detained for a lengthy period of time, was not advised of her Miranda rights, and was denied
counsel. The record fails to support defendant’s argument.
As previously indicated, defendant was not in custody when she gave her first statement
to the police. Accordingly, she was not required to be advised of her Miranda rights. Marsack,
231 Mich App at 374. Because she was not in custody, she was not detained and the record fails
to show that she requested an attorney. In sum, the record does not support defendant’s
argument that her first statement to the police was involuntary.
The record also fails to show that defendant’s second statement to the police was
involuntary. As previously discussed, defendant was in custody at the time she made the
statement and she validly waived her Miranda protections. Defendant admitted that the
detectives gave her a coat because she was cold, and asked if she was hungry or thirsty. They
then gave her pizza and something to drink. The detectives interviewed defendant for
approximately three hours. She appeared calm and relaxed at the beginning of the interview and
did not appear upset until she was informed that the child had died. Thus, the record fails to
support defendant’s argument that her second statement to the police was involuntary.
Affirmed.
/s/ Joel P. Hoekstra
/s/ Jane E. Markey
/s/ Alton T. Davis
-17-
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.